Eugene raised an interesting issue regarding unpublished memorandum opinions that cannot be cited: I am not sure whether Article III federal courts inherently have the authority to issue opinions that cannot be cited, that are not binding precedent, and therefore are not constrained to some degree by the rule of law.
When I clerked on the Second and DC Circuits from 1983-1985, memorandum opinions made up just 20% of caseloads. Today, in 2024, memorandum opinions make up a staggering 90% of caseloads in nearly all 12 Federal Circuits. When I was a law clerk, memorandum opinions were the exception, drafted by law clerks and subject to cursory review by Article III judges. The fact that 90% of the Federal Circuits are memorandum opinions today means that these courts, like the U.S. Supreme Court, only have discretionary caseloads and can choose which cases become law.
All of this reflects the fact that the number of lower court judges has not increased since 1993, and the number of cases in the lower federal courts has tripled since then. The partisan fight over the appointment of new judges explains the failure to get a filibuster in the Senate to pass the new judges bill by 60 votes. Moreover, the 179 currently serving circuit court judges do not want new federal judges created because tripling the number of lower federal court judges to match the tripling of lower federal court caseloads would diminish their status.
I fear that we will never be able to escape this phenomenon, but the harm it brings should not be ignored. Judges who can rule on cases that cannot be cited are not bound by precedents or the expectations of the parties, they decide each case on its facts, they are not bound by the rule of law, and their decisions are unlikely to be overturned by a Supreme Court that has heard only 60 cases this year out of 40,061 cases in 2023.
